Can we really predict where technology will take us? How can we ensure that new technologies and our fear of the future would not instigate a scramble to the legislative drawing board?
The recent local discussions on how cyber harassment and cyber bullying can be thwarted brought back to the limelight the importance of having technology-neutral laws and this in order to avoid situations where changing technologies would mean that we need to update or change our legislation.
Futurist Michio Kaku predicts that within a few years, computers will be able to read our minds. In a few months we shall be wearing smart watches and smart glasses, interacting with technology in so many ways we did not think possible.
Just think about Star Trek. The sci-fi franchise is replete with examples where science fiction became, after some years, science fact. The crew of the Enterprise had replicators, phaser guns, the nifty universal translator, the Starfleet communicator, telepresence and tricoders.
We common mortals now have 3D printers, taser guns, babel translate, mobile phones, video conferencing and pocket analysers. Developments in technology are happening on a daily basis and this means that sometimes laws need some catching up to do.
But do we need to change our laws every time some new technology becomes popular? Absolutely not. Technology, in many situations, should be considered merely as a tool, allowing us to perform tasks and activities that we used to carry out in a different fashion.
Legislating one particular type of technology leaves us in a situation where, in a matter of months, new technologies pop up, necessitating a reconsideration of those freshly baked laws once again. This is where technology neutrality is important.
There is an inherent danger when one legislates as a reaction to current technology as technology lives in the future while laws live in the present. This is the most fundamental reason why technology laws that stood the test of time are technology-neutral. They do not attempt to legally harness the technological state of play but instead look at the underlying elements of the actions involved. It is more a question of looking at changing human interactions and social norms as opposed to underlying technology.
There is an inherent danger when one legislates as a reaction to current technology as technology lives in the future while laws live in the present
While the general populist perception might be that our laws do not cater for traditional crimes committed through the use of technology, reality provides a different picture.
Such reality can be easily explained in the context of social networks and the increased reported incidents relating to harassment and bullying committed through such social networks. According to information issued recently by the Malta police, during the first six months of this year, around 35 requests were made by the Police to Facebook in relation to investigations relating to insults and threats or harassment and defamation.
It is clear therefore that harassment committed through social networks is already a crime recognised under our laws and an act which the police can investigate and prosecute.
Putting ‘cyber’ in front of harassment and bullying does not create a new type of crime. Technology has indeed created new types of crimes such as hacking and denial of service attacks but the same cannot be said in relation to harassment and bullying. It is simply the case of old crimes in new bottles. Our legislator has, albeit potentially unintentionally, managed to criminalise harassment and bullying irrespective of the technology or tools used.
Our Criminal Code deals with harassment under Article 251A. Article 251C further adds that alarming a person or causing distress to a person would also be considered harassment. These articles are good examples of technology-neutral legislation as they apply irrespective of the tools used.
By no means can this be interpreted as meaning that the use of technology in the commission of a crime termed as harassment is not already provided for. Other jurisdictions, such as Australia and the US, had to specifically introduce provisions regulating cyber stalking, as their laws were not as generic and wide-reaching as our provisions.
Cybercrime can be simply classified under two main categories. The first category consists of crimes where technology and computers are the victims of the offence. Such crimes, including hacking, did not exist prior to the advent of technology and therefore required specific legislation.
The second category includes crimes which already existed but can now be committed using technology as a tool. Such crimes include fraud, theft and harassment.
Back to Star Trek, where communications operate through subspace, enabling transmissions to be relayed faster than the speed of light utilising carriers different than our old radio waves. This is still science fiction but just imagine for a moment that such technology will be around in a couple of years or decades, rendering our mobile phones and internet obsolete. Let us further imagine that somebody would harass another individual using subspace communications. Would such act be criminal under our current laws? Yes. That is technology-neutrality.
Fighting the war against cyber harassment and cyber bullying requires other weapons rather than revised laws as the laws arealready there. These battles have to be fought on the educational front, on teaching our kids that technology is a tool that has to be used with caution.
We need to realise that fighting technology with law might not be the best option. We need to ensure that our social norms are working properly, in synch with the electronic world around us.
Surely, starting a local campaign to criminalise cyber harassment and cyber bullying is flawed on more than one ground but primarily because such activities are already illegal under our laws.
Technological neutrality, if correctly applied within our legislative frameworks, should mean that the law should not be afraid of our future wherever technology takes us. Meanwhile, let us think twice before fiddling around with laws that do in fact work.
Antonio Ghio is a partner at Fenech & Fenech Advocates specialising in ICT Law (www.fenechlaw.com). He also lectures ICT Law and Cybercrime at the University of Malta.